339 U.S.

306
70 S.Ct. 652
94 L.Ed. 865

MULLANE
v.
CENTRAL HANOVER BANK & TRUST CO. et al.
No. 378.
Argued and Submitted Feb. 8, 1950.
Decided April 24, 1950.

Mr. Kenneth J. Mullane, New York City, for appellants.

Mr. Albert B. Maginnes, New York City, for appellee, Central Hanover
Bank and Trust Co.
Mr. James N. Vaughan, New York City, for appellee, James N. Vaughan,
Guardian et al.
Mr. Justice JACKSON delivered the opinion of the Court.

This controversy questions the constitutional sufficiency of notice to

beneficiaries on judicial settlement of accounts by the trustee of a common trust
fund established under the New York Banking Law, Consol.Laws, c. 2. The
New York Court of Appeals considered and overruled objections that the
statutory notice contravenes requirements of the Fourteenth Amendment and
that by allowance of the account beneficiaries were deprived of property
without due process of law. 299 N.Y. 697, 87 N.E.2d 73. The case is here on
appeal under 28 U.S.C. 1257, 28 U.S.C.A. 1257.

Common trust fund legislation is addressed to a problem appropriate for state

action. Mounting overheads have made administration of small trusts
undesirable to corporate trustees. In order that donors and testators of
moderately sized trusts may not be denied the service of corporate fiduciaries,
the District of Columbia and some thirty states other than New York have
permitted pooling small trust estates into one fund for investment
administration.* The income, capital gains, losses and expenses of the

collective trust are shared by the constituent trusts in proportion to their

contribution. By this plan, diversification of risk and economy of management
can be extended to those whose capital standing alone would not obtain such
advantage.
3

Statutory authorization for the establishment of such common trust funds is

provided in the New York Banking Law, 100-c, c. 687, L.1937, as amended
by c. 602, L.1943 and c. 158, L.1944. Under this Act a trust company may,
with approval of the State Banking Board, establish a common fund and, within
prescribed limits, invest therein the assets of an unlimited number of estates,
trusts or other funds of which it is trustee. Each participating trust shares
ratably in the common fund, but exclusive management and control is in the
trust company as trustee, and neither a fiduciary nor any beneficiary of a
participating trust is deemed to have ownership in any particular asset or
investment of this common fund. The trust company must keep fund assets
separate from its own, and in its fiduciary capacity may not deal with itself or
any affiliate. Provisions are made for accountings twelve to fifteen months after
the establishment of a fund and triennially thereafter. The decree in each such
judicial settlement of accounts is made binding and conclusive as to any matter
set forth in the account upon everyone having any interest in the common fund
or in any participating estate, trust or fund.

In January, 1946, Central Hanover Bank and Trust Company established a

common trust fund in accordance with these provisions, and in March, 1947, it
petitioned the Surrogate's Court for settlement of its first account as common
trustee. During the accounting period a total of 113 trusts, approximately half
inter vivos and half testamentary, participated in the common trust fund, the
gross capital of which was nearly three million dollars. The record does not
show the number or residence of the beneficiaries, but they were many and it is
clear that some of them were not residents of the State of New York.

The only notice given beneficiaries of this specific application was by

publication in a local newspaper in strict compliance with the minimum
requirements of N.Y. Banking Law 100-c(12): 'After filing such petition (for
judicial settlement of its account) the petitioner shall cause to be issued by the
court in which the petition is filed and shall publish not less than once in each
week for four successive weeks in a newspaper to be designated by the court a
notice or citation addressed generally without naming them to all parties
interested in such common trust fund and in such estates, trusts or funds
mentioned in the petition, all of which may be described in the notice or
citation only in the manner set forth in said petition and without setting forth
the residence of any such decedent or donor of any such estate, trust or fund.'

Thus the only notice required, and the only one given, was by newspaper
publication setting forth merely the name and address of the trust company, the
name and the date of establishment of the common trust fund, and a list of all
participating estates, trusts or funds.
6

At the time the first investment in the common fund was made on behalf of
each participating estate, however, the trust company, pursuant to the
requirements of 100-c(9), had notified by mail each person of full age and
sound mind whose name and address was then known to it and who was
'entitled to share in the income therefrom * * * (or) * * * who would be entitled
to share in the principal if the event upon which such estate, trust or fund will
become distributable should have occurred at the time of sending such notice.'
Included in the notice was a copy of those provisions of the Act relating to the
sending of the notice itself and to the judicial settlement of common trust fund
accounts.

Upon the filing of the petition for the settlement of accounts, appellant was, by
order of the court pursuant to 100-c(12), appointed special guardian and
attorney for all persons known or unknown not otherwise appearing who had or
might thereafter have any interest in the income of the common trust fund; and
appellee Vaughan was appointed to represent those similarly interested in the
principal. There were no other appearances on behalf of any one interested in
either interest or principal.

Appellant appeared specially, objecting that notice and the statutory provisions
for notice to beneficiaries were inadequate to afford due process under the
Fourteenth Amendment, and therefore that the court was without jurisdiction to
render a final and binding decree. Appellant's objections were entertained and
overruled, the Surrogate holding that the notice required and given was
sufficient. 75 N.Y.S.2d 397. A final decree accepting the accounts has been
entered, affirmed by the Appellate Division of the Supreme Court, In re Central
Hanover Bank & Trust Co., 275 App.Div. 769, 88 N.Y.S.2d 907, and by the
Court of Appeals of the State of New York, 299 N.Y. 697, 87 N.E.2d 73.

The effect of this decree, as held below, is to settle 'all questions respecting the
management of the common fund.' We understand that every right which
beneficiaries would otherwise have against the trust company, either as trustee
of the common fund or as trustee of any individual trust, for improper
management of the common trust fund during the period covered by the
accounting is sealed and wholly terminated by the decree. See Matter of
Hoaglund's Estate, 194 Misc. 803, 811812, 74 N.Y.S.2d 156, 164, affirmed
272 App.Div. 1040, 74 N.Y.S.2d 911, affirmed 297 N.Y. 920, 79 N.E.2d 746;

Matter of Bank of New York, 189 Misc. 459, 470, 67 N.Y.S.2d 444, 453;
Matter of Security Trust Co. of Rochester, 189 Misc. 748, 760, 70 N.Y.S.2d
260, 271; Matter of Continental Bank & Trust Co., 189 Misc. 795, 797, 67
N.Y.S.2d 806, 807808.
10

We are met at the outset with a challenge to the power of the Statethe right of
its courts to adjudicate at all as against those beneficiaries who reside without
the State of New York. It is contended that the proceeding is one in personam
in that the decree affects neither title to nor possession of any res, but adjudges
only personal rights of the beneficiaries to surcharge their trustee for negligence
or breach of trust. Accordingly, it is said, under the strict doctrine of Pennoyer
v. Neff, 95 U.S. 714, 24 L.Ed. 565, the Surrogate is without jurisdiction as to
nonresidents upon whom personal service of process was not made.

11

Distinctions between actions in rem and those in personam are ancient and
originally expressed in procedural terms what seems really to have been a
distinction in the substantive law of property under a system quite unlike our
own. Buckland and McNair, Roman Law and Common Law, 66; Burdick,
Principles of Roman Law and Their Relation to Modern Law, 298. The legal
recognition and rise in economic importance of incorporeal or intangible forms
of property have upset the ancient simplicity of property law and the clarity of
its distinctions, while new forms of proceedings have confused the old
procedural classification. American courts have sometimes classed certain
actions as in rem because personal service of process was not required, and at
other times have held personal service of process not required because the
action was in rem. See cases collected in Freeman on Judgments, 1517 et
seq. (5th ed.).

12

Judicial proceedings to settle fiduciary accounts have been sometimes termed in

rem, or more indefinitely quasi in rem, or more vaguely still, 'in the nature of a
proceeding in rem.' It is not readily apparent how the courts of New York did or
would classify the present proceeding, which has some characteristics and is
wanting in some features of proceedings both in rem and in personam. But in
any event we think that the requirements of the Fourteenth Amendment to the
Federal Constitution do not depend upon a classification for which the
standards are so elusive and confused generally and which, being primarily for
state courts to define, may and do vary from state to state. Without disparaging
the usefulness of distinctions between actions in rem and those in personam in
many branches of law, or on other issues, or the reasoning which underlies
them, we do not rest the power of the State to resort to constructive service in
this proceeding upon how its courts or this Court may regard this historic
antithesis. It is sufficient to observe that, whatever the technical definition of its

chosen procedure, the interest of each state in providing means to close trusts
that exist by the grace of its laws and are administered under the supervision of
its courts is so insistent and rooted in custom as to establish beyond doubt the
right of its courts to determine the interests of all claimants, resident or
nonresident, provided its procedure accords full opportunity to appear and be
heard.
13

Quite different from the question of a state's power to discharge trustees is that
of the opportunity it must give beneficiaries to contest. Many controversies
have raged about the cryptic and abstract words of the Due Process Clause but
there can be no doubt that at a minimum they require that deprivation of life,
liberty or property by adjudication be preceded by notice and opportunity for
hearing appropriate to the nature of the case.

14

In two ways this proceeding does or may deprive beneficiaries of property. It

may cut off their rights to have the trustee answer for negligent or illegal
impairments of their interests. Also, their interests are presumably subject to
diminution in the proceeding by allowance of fees and expenses to one who, in
their names but without their knowledge, may conduct a fruitless or
uncompensatory contest. Certainly the proceeding is one in which they may be
deprived of property rights and hence notice and hearing must measure up to
the standards of due process.

15

Personal service of written notice within the jurisdiction is the classic form of
notice always adequate in any type of proceeding. But the vital interest of the
State in bringing any issues as to its fiduciaries to a final settlement can be
served only if interests or claims of individuals who are outside of the State can
somehow be determined. A construction of the Due Process Clause which
would place impossible or impractical obstacles in the way could not be
justified.

16

Against this interest of the State we must balance the individual interest sought
to be protected by the Fourteenth Amendment. This is defined by our holding
that 'The fundamental requisite of due process of law is the opportunity to be
heard.' Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363.
This right to be heard has little reality or worth unless one is informed that the
matter is pending and can choose for himself whether to appear or default,
acquiesce or contest.

17

The Court has not committed itself to any formula achieving a balance between
these interests in a particular proceeding or determining when constructive

notice may be utilized or what test it must meet. Personal service has not in all
circumstances been regarded as indispensable to the process due to residents,
and it has more often been held unnecessary as to nonresidents. We disturb
none of the established rules on these subjects. No decision constitutes a
controlling or even a very illuminating precedent for the case before us. But a
few general principles stand out in the books.
18

An elementary and fundamental requirement of due process in any proceeding

which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections. Milliken v. Meyer, 311
U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357; Grannis v. Ordean, 234
U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363; Priest v. Board of Trustees of Town of
Las Vegas, 232 U.S. 604, 34 S.Ct. 443, 58 L.Ed. 751; Roller v. Holly, 176 U.S.
398, 20 S.Ct. 410, 44 L.Ed. 520. The notice must be of such nature as
reasonably to convey the required information, Grannis v. Ordean, supra, and it
must afford a reasonable time for those interested to make their appearance,
Roller v. Holly, supra, and cf. Goodrich v. Ferris, 214 U.S. 71, 29 S.Ct. 580, 53
L.Ed. 914. But if with due regard for the practicalities and peculiarities of the
case these conditions are reasonably met the constitutional requirements are
satisfied. 'The criterion is not the possibility of conceivable injury, but the just
and reasonable character of the requirements, having reference to the subject
with which the statute deals.' American Land Co. v. Zeiss, 219 U.S. 47, 67, 31
S.Ct. 200, 207, 55 L.Ed. 82, and see Blinn v. Nelson, 222 U.S. 1, 7, 32 S.Ct. 1,
2, 56 L.Ed. 65, Ann.Cas.1913B, 555.

19

But when notice is a person's due, process which is a mere gesture is not due
process. The means employed must be such as one desirous of actually
informing the absentee might reasonably adopt to accomplish it. The
reasonableness and hence the constitutional validity of any chosen method may
be defended on the ground that it is in itself reasonably certain to inform those
affected, compare Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091,
with Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446, 57 A.L.R.
1230, or, where conditions do not reasonably permit such notice, that the form
chosen is not substantially less likely to bring home notice than other of the
feasible and customary substitutes.

20

It would be idle to pretend that publication alone as prescribed here, is a

reliable means of acquainting interested parties of the fact that their rights are
before the courts. It is not an accident that the greater number of cases reaching
this Court on the question of adequacy of notice have been concerned with
actions founded on process constructively served through local newspapers.

Chance alone brings to the attention of even a local resident an advertisement in

small type inserted in the back pages of a newspaper, and if he makes his home
outside the area of the newspaper's normal circulation the odds that the
information will never reach him are large indeed. The chance of actual notice
is further reduced when as here the notice required does not even name those
whose attention it is supposed to attract, and does not inform acquaintances
who might call it to attention. In weighing its sufficiency on the basis of
equivalence with actual notice we are unable to regard this as more than a feint.
21

Nor is publication here reinforced by steps likely to attract the parties' attention
to the proceeding. It is true that publication traditionally has been acceptable as
notification supplemental to other action which in itself may reasonably be
expected to convey a warning. The ways or an owner with tangible property are
such that he usually arranges means to learn of any direct attack upon his
possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel
or entry upon real estate in the name of law may reasonably be expected to
come promptly to the owner's attention. When the state within which the owner
has located such property seizes it for some reason, publication or posting
affords an additional measure of notification. A state may indulge the
assumption that one who has left tangible property in the state either has
abandoned it, in which case proceedings against it deprive him of nothing, cf.
Anderson National Bank v. luckett, 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692,
151 A.L.R. 824; Security Savings Bank v. California, 263 U.S. 282, 44 S.Ct.
108, 68 L.Ed. 301, 31 A.L.R. 391, or that he has left some caretaker under a
duty to let him know that it is being jeopardized. Ballard v. Hunter, 204 U.S.
241, 27 S.Ct. 261, 51 L.Ed. 461; Huling v. Kaw Valley Ry. & Imp. Co., 130
U.S. 559, 9 S.Ct. 603, 32 L.Ed. 1045. As phrased long ago by Chief Justice
Marshall in The Mary, 9 Cranch 126, 144, 3 L.Ed. 678, 'It is the part of
common prudence for all those who have any interest in (a thing), to guard that
interest by persons who are in a situation to protect it.'

22

In the case before us there is, of course, no abandonment. On the other hand
these beneficiaries do have a resident fiduciary as caretaker of their interest in
this property. But it is their caretaker who in the accounting becomes their
adversary. Their trustee is released from giving notice of jeopardy, and no one
else is expected to do so. Not even the special guardian is required or
apparently expected to communicate with his ward and client, and, of course, if
such a duty were merely transferred from the trustee to the guardian, economy
would not be served and more likely the cost would be increased.

23

This Court has not hesitated to approve of resort to publication as a customary

substitute in another class of cases where it is not reasonably possible or

practicable to give more adequate warning. Thus it has been recognized that, in
the case of persons missing or unknown, employment of an indirect and even a
probably futile means of notification is all that the situation permits and creates
no constitutional bar to a final decree foreclosing their rights. Cunnius v.
Reading School District, 198 U.S. 458, 25 S.Ct. 721, 49 L.Ed. 1125, 3
Ann.Cas. 1121; Blinn v. Nelson, 222 U.S. 1, 32 S.Ct. 1, 56 L.Ed. 65,
Ann.Cas.1913B, 555; and see Jacob v. Roberts, 223 U.S. 261, 32 S.Ct. 303, 56
L.Ed. 429.
24

Those beneficiaries represented by appellant whose interests or whereabouts

could not with due diligence be ascertained come clearly within this category.
As to them the statutory notice is sufficient. However great the odds that
publication will never reach the eyes of such unknown parties, it is not in the
typical case much more likely to fail than any of the choices open to legislators
endeavoring to prescribe the best notice practicable.

25

Nor do we consider it unreasonable for the State to dispense with more certain
notice to those beneficiaries whose interests are either conjectural or future or,
although they could be discovered upon investigation, do not in due course of
business come to knowledge of the common trustee. Whatever searches might
be required in another situation under ordinary standards of diligence, in view
of the character of the proceedings and the nature of the interests here involved
we think them unnecessary. We recognize the practical difficulties and costs
that would be attendant on frequent investigations into the status of great
numbers of beneficiaries, many of whose interests in the common fund are so
remote as to be ephemeral; and we have no doubt that such impracticable and
extended searches are not required in the name of due process. The expense of
keeping informed from day to day of substitutions among even current income
beneficiaries and presumptive remaindermen, to say nothing of the far greater
number of contingent beneficiaries, would impose a severe burden on the plan,
and would likely dissipate its advantages. These are practical matters in which
we should be reluctant to disturb the judgment of the state authorities.

26

Accordingly we overrule appellant's constitutional objections to published

notice insofar as they are urged on behalf of any beneficiaries whose interests
or addresses are unknown to the trustee.

27

As to known present beneficiaries of known place of residence, however, notice

by publication stands on a different footing. Exceptions in the name of
necessity do not sweep away the rule that within the limits of practicability
notice must be such as is reasonably calculated to reach interested parties.
Where the names and post office addresses of those affected by a proceeding

are at hand, the reasons disappear for resort to means less likely than the mails
to apprise them of its pendency.
28

The trustee has on its books the names and addresses of the income
beneficiaries represented by appellant, and we find no tenable ground for
dispensing with a serious effort to inform them personally of the accounting, at
least by ordinary mail to the record addresses. Cf. Wuchter v. Pizzutti, supra.
Certainly sending them a copy of the statute months and perhaps years in
advance does not answer this purpose. The trustee periodically remits their
income to them, and we think that they mgith reasonably expect that with or
apart from their remittances word might come to them personally that steps
were being taken affecting their interests.

29

We need not weigh contentions that a requirement of personal service of

citation on even the large number of known resident or nonresident
beneficiaries would, by reasons of delay if not of expense, seriously interfere
with the proper administration of the fund. Of course personal service even
without the jurisdiction of the issuing authority serves the end of actual and
personal notice, whatever power of compulsion it might lack. However, no
such service is required under the circumstances. This type of trust presupposes
a large number of small interests. The individual interest does not stand alone
but is identical with that of a class. The rights of each in the integrity of the fund
and the fidelity of the trustee are shared by many other beneficiaries. Therefore
notice reasonably certain to reach most of those interested in objecting is likely
to safeguard the interests of all, since any objections sustained would inure to
the benefit of all. We think that under such circumstances reasonable risks that
notice might not actually reach every beneficiary are justifiable. 'Now and then
an extraordinary case may turn up, but constitutional law, like other mortal
contrivances, has to take some chances, and in the great majority of instances,
no doubt, justice will be done.' Blinn v. Nelson, supra, 222 U.S. at page 7, 32
S.Ct. at page 2, 56 L.Ed. 65, Ann.Cas.1913B, 555.

30

The statutory notice to known beneficiaries is inadequate, not because in fact it

fails to reach everyone, but because under the circumstances it is not
reasonably calculated to reach those who could easily be informed by other
means at hand. However it may have been in former times, the mails today are
recognized as an efficient and inexpensive means of communication. Moreover,
the fact that the trust company has been able to give mailed notice to known
beneficiaries at the time the common trust fund was established is persuasive
that postal notification at the time of accounting would not seriously burden the
plan.

31

In some situations the law requires greater precautions in its proceedings than
the business world accepts for its own purposes. In few, if any, will it be
satisfied with less. Certainly it is instructive, in determining the reasonableness
of the impersonal broadcast notification here used, to ask whether it would
satisfy a prudent man of business, counting his pennies but finding it in his
interest to convey information to many persons whose names and addresses are
in his files. We are not satisfied that it would. Publication may theoretically be
available for all the world to see, but it is too much in our day to suppose that
each or any individual beneficiary does or could examine all that is published to
see if something may be tucked away in it that affects his property interests.
We have before indicated in reference to notice by publication that, 'Great
caution should be used not to let fiction deny the fair play that can be secured
only by a pretty close adhesion to fact.' McDonald v. Mabee, 243 U.S. 90, 91,
37 S.Ct. 343, 61 L.Ed. 608, L.R.A.1917F, 458.

32

We hold the notice of judicial settlement of accounts required by the New York
Banking Law 100-c(12) is incompatible with the requirements of the
Fourteenth Amendment as a basis for adjudication depriving known persons
whose whereabouts are also known of substantial property rights. Accordingly
the judgment is reversed and the cause remanded for further proceedings not
inconsistent with this opinion.

33

Reversed.

34

Mr. Justice DOUGLAS took no part in the consideration or decision of this

case.

35

Mr. Justice BURTON, dissenting.

36

These common trusts are available only when the instruments creating the
participating trusts permit participation in the common fund. Whether or not
further notice to beneficiaries should supplement the notice and representation
here provided is properly within the discretion of the State. The Federal
Constitution does not require it here.

Ala.Code Ann., 1940, Cum.Supp.1947, tit. 58, 88 to 103, as amended, Laws

1949, Act 262; Ariz.Code Ann., 1939, Cum.Supp.1949, 51-1101 to 51-1104;
Ark.Stat.Ann.1947, 58-110 to 58-112; Cal.Bank.Code Ann., Deering 1949,
1564; Colo.Stat.Ann., 1935, Cum.Supp.1947, c. 18, 173 to 178;

Conn.Gen.Stat.1949 Rev., 5805; Del.Rev.Code, 1935, 4401, as amended,

Laws 1943, c. 171, Laws 1947, c. 268; (D.C.) Pub.Law No. 416, 81st Cong.,
1st Sess., c. 767, Oct. 27, 1949, 63 Stat. 938; Fla.Stat., 1941, 655.29 to
655.34, F.S.A.; Ga.Code Ann., 1937, Cum.Supp.1947, 109-601 to 109-622;
Idaho Code Ann., 1949, Cum.Supp.1949, 68-701 to 68-703; Ill.Rev.Stat.,
1949, c. 16 1/2, 57 to 63; Ind.Stat.Ann., Burns 1950, 18-2009 to 18-2014;
Ky.Rev.Stat., 1948, 287.230; La.Gen.Stat.Ann., 1939, 9850.64, Act No. 81
of 1938, 64; Md.Ann.Code Gen.Laws, 1939, Cum.Supp.1947, art. 11, 62A;
Mass.Ann.Laws, 1933, Cum.Supp.1949, c. 203A; Mich.Stat.Ann., 1943,
Cum.Supp.1949, 23.1141 to 23.1153, Comp.Laws 1948, 555.101
555.113; Minn.Stat., 1945, 48.84, as amended, Laws 1947, c. 234, M.S.A.;
N.J.S.A., 1939, Cum.Supp.1949, 17:9A36 to 17:9A46; N.C.Gen.Stat.,
1943, 36 47 to 3652; Ohio Gen.Code Ann. (Page's 1946),
Cum.Supp.1949, 715 to 720, 722; Okla.Stat.1941, Cum.Supp.1949, tit. 60,
162; Pa.Stat.Ann., 1939, Cum.Supp.1949, tit. 7, 8191109 to 819 1109d;
So.Dak.Laws 1941, c. 20; Vernon's Tex.Rev.Civ.Stat.Ann., 1939,
Cum.Supp.1949, art. 7425b48; Vt. Stat., 1947 Rev., 8873; Va.Code Ann.,
1950, 6-569 to 6-576; Wash.Rev.Stat.Ann., Supp.1943, 3388 to 33886;
W.Va.Code Ann., 1949, 4219 (1) et seq.; Wisc.Stat., 1947, 223.055.